State of Rajasthan v. Ram Swaroop Das — 1975 DIGILAW 28 (RAJ)

LODHA, J.—Two houses bearing Municipal Nos. 9/378(a) and 9/380 popularly known as Bhutiya-ka-asthal and Naya Temple situated in Kota were acquired by the State of Rajasthan under the Land Acquisition Act, 1953 (which will hereinafter be referred to as the Act) in connection with the construction of Chambal Canal Barrage. Ram Swaroop Dass (defendant) claimed compensation for the acquisition of the said properties. The Land Acquisition Officer allowed the claim of Ramswaroop Dass and by his award dated 25 October, 1956, fixed the amount of compensation payable to Ramswaroop Dass as Rs. 16,499/-. Thereafter the Devasthan Department of the Government of Rajasthan made an application to the Land Acquisition Officer that the compensation was payable to the Department and, therefore, the matter may be referred to the Court for determination of the question as to the person to whom the compensation is payable under sec. 18 of the Act. The District Judge, Kota, by his order dated May 23, 1960, in Civil Miscellaneous case No. 29 of 1958 (Devasthan Department vs. Ramswroop) held that Ram Swaroop Dass is not the person entitled to receive compensation on account of acquisition of the property in dispute and further that the compensation should be paid to the Devasthan Department as trustee. At this stage, it may be stated that Ram Swaroop Dass had already withdrawn an amount of Rs. 8,250/- out of the compensation awarded by the Land Acquisition Officer-Consequently, the State of Rajasthan served a notice upon Ram Swaroop Dass, who will hereinafter be referred to as the "defendant", for refunding the amount of Rs. 8,250/- along with interest at 6% per eunum. total Rs. 10,368/- and since he did not do so, the State of Rajasthan filed the present suit in the court of District Judge, Kota praying that a decree for Rs. 10,368/- be awarded in its favour against the defendant. The defendant resisted the suit, inter alia, on the ground that the order of the District Judge, Kota, dated May 23, 1960 was without jurisdiction and consequently null and void and, therefore, he was not liable to refund any amount out of the compensation paid to him. 2. The learned Judge framed the following issues on the pleadings of the parties : (1) Whether the judgment of the District Judge May 23, 1960 on reference under sec. 18 of the Land Acquisition Act being without jurisdiction is nullity ? 2. The learned Judge framed the following issues on the pleadings of the parties : (1) Whether the judgment of the District Judge May 23, 1960 on reference under sec. 18 of the Land Acquisition Act being without jurisdiction is nullity ? (2) Whether the plantiff( State) obtained the judgment in reference by fraud as enumerated in para No.......of the written statement. (3) Whether the plaintiff being the acquiring authority of the properties described in Item No 1 of the plaint, estopped in claiming the award amount thereof. Whether the plaintiffs suit is liable to be dismissed on that account ? (4) Whether the defendant is entitled to receive from the plaintiff Rs. 8,249/- as also interest at the rate of 6% per annum on this amount ? (5) Relief. 3. The learned District Judge took up issues No. 1 and 2 as preliminary issues and decided them in favour of the defendant and by his judgment and decree dated December 7, 1971 dismissed the suit. Dissatisfied with the judgment and decree by the trial Court, the plaintiff, State of Rajathan, has filed this appeal. 4. Mr. L.R. Mehta filed power on behalf of Ram Swaroop Dass, respondent, but at the time of arguments on February 18, 1975 Mr. Rajendra Mehta appeared for Mr. L R. Mehta and pleaded no instructions. The appeal has, therefore, been heard ex parte. 5. Two points have been pressed by the learned Deputy Government Advocate on behalf of the appellant—State of Rajasthan. It has been urged in the first instance that the reference made to the District Court under sec. 18 of the Act was competent and consequently the order dated May 23, 1960 is not without jurisdiction. The other contention of the learned Deputy Government Advocate is that since the defendant did not file appeal to the High Court of Judicature for Rajasthan under sec. 54 of the Act from the order dated May 23, 1960, the order became final and cannot be challenged in this suit. In this connection it has also been urged that the finding of the learned District Judge that the plaintiff was estopped by his conduct from challenging the right of the defendant to receive the amount of compensation, is incorrect. 6. In this connection it has also been urged that the finding of the learned District Judge that the plaintiff was estopped by his conduct from challenging the right of the defendant to receive the amount of compensation, is incorrect. 6. In order to determine the question whether the order dated May 23, 1960 is a valid order, it would be necessary to refer to the provisions of sec. 18 of the Act, under which the said order was passed, sec. 18 reads as under : "18. Reference to Court—(1) The (State Government) department on whose behalf (or the company for which) acquisition is being made or any person interested who has not accepted the award or the amendment thereof, may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the court whether his objection be to the measurement of the land, the amount of the compensation, the amount of costs allowed, the persons to whom it is payable, or the apportionment of the compensation among the persons interested." (2) The application shall state the grounds on which objection to the award or the amendment there is taken: Provided that every such application shall be made — (a) if the person making it was present or represented before the Collector at the time when he made his award or the amendment thereof, within six weeks from the date of the Collectors award or the amendment there, and (b) in other cases, within six weeks of the receipt of the notice from the Collector under sec. 12 sub-sec. (2) or within six months from the date of the Collectors award or the amendment thereof whichever period shall first expire." 7. The controversy in this case centres round the competence of the Devasthan Department of the State of Rajasthan to file an application under sec. 18 of the Act. The contention of the learned Deputy Government Advocate is that the Devasthan Department (which will here in after to as the Department) was a person interested who had not accepted the award. 8. Person interested has been defined in sec. 18 of the Act. The contention of the learned Deputy Government Advocate is that the Devasthan Department (which will here in after to as the Department) was a person interested who had not accepted the award. 8. Person interested has been defined in sec. 3(b) of the Act as follows : "3(b),— the expression "person interested" includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land;" 9. The words person interested occur in a number of sections of the Act. They are secs. 5A, 9, 11, 12, 16, 18 and 29. The scheme of the Act is like this. First of all there are preliminary proceedings under sec. 4 preceding intended acquisition, under which the land Acquisition Officer gives a public notice in the prescribed form of the proposed acquisition. Under section 5A, any person interested in any land in respect of which a notice has been given under sec. 4, may object to the acquisition of the land. Thereafter, a declaration is made under sec. 6 that the land is required for a public purpose and such a declaration is a conclusive evidence that the land is needed for a public purpose. Then, under sec. 9, the Land Acquisition Officer causes public notice to be given stating that the State Government intends to take possess on of the land and that claims to compensation for all interests in such land may be made to him. Sec. 9(2) further requires that such notice shall state the particulars of the land so needed, and shall require all "persons interested" in the land to appear personally or by agent before the land Acquisition Officer. Under sec. 11, the Land Acquisition Officer proceeds to enquire into the objections, if any, which any person interested has made pursuant to a notice given under sec. 9 as to the measurement of the land, its value at the date of publication of the declaration under sec. 6 and also as regards the respective interests of the persons claiming compensation. It is under this section that he fixes the amount of compensation and also determines as to whom the amount of compensation is to be paid. 9 as to the measurement of the land, its value at the date of publication of the declaration under sec. 6 and also as regards the respective interests of the persons claiming compensation. It is under this section that he fixes the amount of compensation and also determines as to whom the amount of compensation is to be paid. Sec. 12 provides that the award given by the Land Acquisition Officer under sec. 1 will be final and conclusive evidence as between the Land Acquisition Officer and the persons interested and the Acquisition Officer shall give immediate notice of his award to such of the persons interested as are not present personally or by their representative when the award is made. However, if the Department on whose behalf or the company for which the acquisition is made or any person interested may by written application to the Acquisition Officer require that the matter be referred for the determination of the court as to the various points referred to in sec. 18 of the Act. 10. In Collector of Bombay vs. Nusserwanji Rattanji Mistri(l), it was observed : "When the Government acquires lands under the provisions of the Land Acquisition Act, it must be for a public purpose, and with a view to put them to that purpose, the Government acquires the sum total of all private interests subsisting in them. If the Government has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user." 11. In Deputy Collector, Calicut Division vs. Aiyavn Pillay (2) Wallis J. observed: "It is, in my opinion, clear that the Act does not contemplate or provide for the acquisition of any interest which already belongs to Govern ment in land which is being acquired under the Act, but only for the acquisition of such interests in the land as do not already belong to the Government," These observations were cited with approval by their Lordships of the Supreme Court in Collector of Bombay vs. Nusserwanji Rattanji Mistri (l). Their Lordships were further pleased to observed that the Government is not a person interested within the definition in sec. 3(b) and as already stated, the Act does not contemplate its interest being valued or compensation being awarded therefor. 12. Their Lordships were further pleased to observed that the Government is not a person interested within the definition in sec. 3(b) and as already stated, the Act does not contemplate its interest being valued or compensation being awarded therefor. 12. Thus the use of the words person interested in the various sections and the observations made by their Lordships of the Supreme Court (Extracted above), clearly go to show that the Government which acquires the land is not included in the term person interested. 13. Learned Deputy Government, Advocate, however, invited my attention to Dr. G. H. Grant vs. The State of Bihar(3) and Sunderlal vs. Paremsukhdas(4) in support of his contention that under certain circumstances, the Government can also become person interested. 14. In Sunderlal vs. Paremsukhdas(4) it was observed that the definition of person interested is an inclusive definition It is not necessary that in order to fall within the definition, a person should claim an interest in land, which has been acquired. A person becomes a person interested if he claims an interest in compensation to be awarded. From the facts and the circumstances of the case stated in the judgment, it would be clear that Paremsukhdas who claimed to be a person interested within sec. 3(b) of the Act alleged that he had obtained a decree against Khusal Singh to whom a part of the compensation had been awarded and had started execution proceedings for the decretal amount against Khusal Singh, in the course of which the amount of compensation payable to Khusal Singh had been attached for the satisfaction of his decree. The rationale of this decision is perfectly understandable in view of the provisions of sec. 5A(3) of the Act which provides that for the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act. The scheme of the Act seems to first deal with the persons interested in land. These persons are heard under sec. 5A of the Act. Besides that, the expression person interested as defined in sec. 3(b) itself makes it clear that it includes all persons claiming an interest in compensation to be made on account of the acquisition of the land under this Act. In my opinion, this ruling does not help the appellant at all. 15. 5A of the Act. Besides that, the expression person interested as defined in sec. 3(b) itself makes it clear that it includes all persons claiming an interest in compensation to be made on account of the acquisition of the land under this Act. In my opinion, this ruling does not help the appellant at all. 15. In Dr. G.H. Grant vs. The State Bihar(3) the light of the State of Bihar arose when the title to the land vested in it by virtue of the notification issued under the Bihar Land Reforms Act after the date of the award and their Lordships were pleased to observe that : "If after a reference is made to the Court the the person interested dies and bis title devolves upon another person, because of inheritance, succession, insolvency, forfeiture, compulsory winding up or other form of statutory transfer, it would be open to the party upon whom the title has devolved to prosecute the claim which the person from whom the title has devolved could have prosecuted." In this connection their Lordships relied on Promotha Nath Mitra vs. Rakshlal Das Addy (1910)11 Cal. Law Journal 420 wherein it was held that a reference made by the Collector at the instance of a proprietor of land may be prosecuted by the purchaser of his rights after the award at a revenue auction. If the right to prosecute a reference by a person on whom the title of the person interested has devolved be granted, there is no reason why the right to claim a reference of a dispute about the person entitled to compensation may not be exercised by the person on whom the title has devolved since the date of the award. Thus Dr. G.H. Grant vs. The State of Bihar (3) is a case of devolution of interest of the person interested on the State after the award had been given and is thus completely distinguishable on facts and has consequently no application to the facts and circumstances of the present case. 16. I may at this stage refer to Mohammad Wajesh Mirza vs. Secretary to State for India in Council(5) wherein it was held that when the Government itself claims to be the owner of the land, there can be no question of acquisition and the provisions of the Land Acquisition Act cannot be applicable. 16. I may at this stage refer to Mohammad Wajesh Mirza vs. Secretary to State for India in Council(5) wherein it was held that when the Government itself claims to be the owner of the land, there can be no question of acquisition and the provisions of the Land Acquisition Act cannot be applicable. The question of title arising between the Government and another claimant cannot therefore be settled by the Judge in a reference under sec. 18 of the Act. It was further held that the Government is not person interested as defined in sec. 3(b) of the Act and the Government cannot, there fore, demand a reference under sec. 18 of the Act as it is only a person interested who has not accepted the award who may do so. 17. My conclusion, therefore, is that the Devasthan Department of the Government of Rajasthan, which is a limb of the State Government, cannot fall within the definition of the expression person interested as used in the Act. The natural corollary of this finding is that the reference made by the Acquisition Officer at the instance of the Department was incompetent and consequently the order dated May 23, 1960 passed thereon by the learned District Judge, Kota was without jurisdiction. 18. This brings me to the consideration of the other contention raised on behalf of the appellant that in any view of the matter, the order dated May 23, 1960 not having been appealed from under section 54 of the Act operates as res judicata against the defendant. In support of his contention he has relied on the following observations in Mst. Bhagwati vs. Mst. Ram Kali (6) : "In order successfully to establish a plea of res judicata or estoppel by record, it is necessary to show that in a previous case a Court having jurisdiction to try the question came to a decision necessarily and substantially involving the determination of the matter in issue in a later case. It was at one time a matter of doubt in India whether the determination of a Court to which a matters has been referred by the Collector under sec. It was at one time a matter of doubt in India whether the determination of a Court to which a matters has been referred by the Collector under sec. 18, Land Acquisition Act, was such a decision, That doubt was resolved by the judgment of this Board in 49 I, A. 129, which decided that where a dispute as to the title to receive the compensation has been referred to the Court, a decree thereon not appealed from renders the question of title res judicata in a suit between the parties to the dispute. It is sufficient to point out that one of the essential requirements of applicability of sec. 11 is that it is necessary to show that the decision in the previous case was by a competent court having jurisdiction to try the question. In the present case I have already held above that the court which passed the order dated May 23, 1960 had no jurisdiction to entertain and decide the reference made on the application by the Department. Consequently the appellant cannot successfully establish a plea of res judicata against the defendant. 19. Last argument of the learned Deputy Government Advocate relates to the estoppel. There is no gain-saying the fact that the Government undertook the acquisition proceedings so as to negative the suggestion that it owned the land and having regard to the whole course of the land acquisition proceedings which were utterly inconsistent with the land being owned by the Government. It would not be unreasonable to infer that the Government must be taken to have represented that the land did not belong to it. If an authority is needed on the point reference may be made to Secretary of State vs. Tatyasaheb Yeshwantrao Holkar(7) wherein Beaumont, Chief Justice, speaking for the court observed as follows : "Another objection raised by the defendant to the Governments claim is based on estoppel and I think that claim is also well founded. Having regard to the terms of the Government notification which described the land in such a manner as to negative the suggestion that it was Government land and having regard to the whole course of the land acquisition proceedings which were utterly inconsistent with the land being Government land, I think the Government must be taken to have represented that in 1906 the land did not belong to Government. X X X X But to my mind the defendant clearly did alter his position. If the Government had said in 1906 that the land was their land, it appears to me obvious that there would never have been any proceedings under the Land Acquisition Act, and the defendant, therefore, would never have made the claim he did make and would not have given up possession under the Act, X X X X The whole course of conduct by the defendant was altered by the fact that the Government represented that the land was not their land, and I see no reason why they should be allowed now to contradict that representation on which the defendant had acted to his detriment." I respectfully agree to and adopt these observations and hold that in the facts and circumstances of the case, the Government is estopped from pleading that the land is owned by them. 20. In the result, I dismiss the appeal. But in the circumstances of the case, I make no order as to costs.